NUISANCE

The issues to be resolved is on Nuisance.

As to whether or not Y can successfully sue X under nuisance for doing ABC, Landowners, or those
in rightful possession of land, have the right to the unimpaired condition of the property and to
reasonable comfort and convenience in its occupation. Therefore, any act that interferes with a
person’s use and enjoyment of his land Constitute nuisance.
There are three (3) types of nuisance, Namely:
1. Private Nuisance
2. Public Nuisance
3. Statutory Nuisance
A private nuisance is when one individual unreasonably interferes in the enjoyment of another
individual’s use of their (e.g. land). Act that may amount to nuisance include excessive tolling of
church bells; pestilential smells; vibrations; and escaping fumes from factories. Private nuisance
represents a balancing of conflicting interests, (e.g. taxi horns, radio music), and the courts are
principally concerned with the mutual adjustment of right etc.
The law on private nuisance seeks to balance the enjoyment of one property owner with another.

Under nuisance, the burden of proving that the defendant conduct amounts to nuisance lies on the
claimant. Therefore, to succeed in an action for nuisance, the Claimant must basically prove that:
1. He has proprietary interest in the property, and has capacity to sue.
2. The Defendant conduct was unreasonably.
3. He suffered damage as result of the Defendant’s unreasonable act,

In respect of capacity, a person should can sue under nuisance should be a person who has
proprietary interest in the property. In the case of Malone v Laskey, it was held that a landlord or
a tenant can sue under nuisance. However, a guest, lodger cannot sue.
Also, generally, the person to sue is the creator of the nuisance. A tenant/occupier could be sued if
he creates the nuisance himself and his agent does. A landlord can also be sued if he let the property
out for the purposes of creating the nuisance, or the nuisance existed before the property was let, or
he has reserved the right the repair the state of affair that causes the nuisance.
Public nuisance is a common law crime as well as a tort. The remedy for a public nuisance is a
prosecution or a relator action by the Attorney General on behalf of the public. In public nuisance
there is no requirement that the claimant must have an interest in land in the sense normally insisted
upon in private nuisance. A claimant who suffers particular damage, over and above the damage
suffered by the rest of the public, may maintain an action in nuisance.
Public nuisance has been defined as ‘an act or omission, which materially affects the reasonable
comfort of a class of persons’. Attorney General v PYA Quarries Ltd.
Furthermore, the Claimant must prove that the Defendant’s conduct was
unreasonable.Importantly, for the claimant to succeed under private nuisance, he is required to
prove that the Defendant conduct was unreasonable. Therefore, the test for determining whether
there is nuisance or not is unreasonableness. The primary question in any action for private
nuisance is: was the defendant’s activity reasonable according to the ordinary usages of mankind
living…in a particular society? A balance has to be maintained between the right of the occupier to
do what he likes with his own, and the right of his neighbour not to be interfered with.
The factors the Courts consider to determine whether the defendant’s conduct was unreasonable
include:
1. Malice. That is the purpose behind the defendant’s conduct. a court will more likely assess
an issue as a nuisance where the Defendant has behaved maliciously. See Christie v Davy.
2. Location: usually, the Court considers the location where the defendant took effect. Whether
is residential area or industrial area. e.g. noise from a factory is less likely to be a nuisance if
that area has always had factories carrying out similar work. However, if the damage is
material injury to property, the Courts do not consider location as a factor for determining
reasonableness. St Helens Smelting Co v Tipping.
3. Duration, frequency and intensity: as a general rule, the longer, more frequent and intense
the issue, the more likely it is to be a nuisance.
4. Sensitivity of the claimant: a court will assess the nuisance according to the effect on a
reasonable claimant, as opposed to one who is particularly sensitive.
5. Public Utility of defendant’s conduct.
Additionally, the claimant must prove that the Defendant’s conduct caused some form of damage
since nuisance is not actionable per se.
A claimant under nuisance may allege any of the following forms of injury. That is,
1. The defendant conduct substantially interferes with his free use and enjoyment of his
property; or
2. The defendant’s conduct causes material injury or damage to his property.
A defendant who has been sued under nuisance may raise any of the following defences:
1. Consent
2. 20 years prescription
3. Statutory justification/authority
4. Act of God
5. Contributory negligence
It must be stated, however, that coming to the nuisance is not a defence as was held in the case of
Miller v Jackson.
A Successful claimant under nuisance may be entitled to the following remedies:
1. Injunction
2. damages
3. Abatement of nuisance
APPLY THE ABOVE LAW TO THE FACTS, AND CONCLUDE.
DENNIS DENNIS